Chagos Islanders v Attorney Generall & Anor [2004] EWCA Civ 997

[2004] EWCA Civ 997Case No A2/2004/0224
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE OUSELEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 July 2004
Before
THE PRESIDENTLORD JUSTICE SEDLEYLORD JUSTICE NEUBERGER
Between
CHAGOS ISLANDERSApplicants/ClaimantsTHE ATTORNEY GENERALRespondents/DefendantsHER MAJESTY’S BRITISH INDIAN OCEAN TERRITORY COMMISSIONERRespondent
Mr Robin Allen QC and Mr Thomas Coghlin (instructed by Sheridans) for Applicants/ClaimantsMr John Howell QC, Mr Rhodri Thompson QC and Mr Kieron Beal (instructed by The Treasury Solicitor) for Respondents/DefendantsHearing Hearing date: Thursday 17 June 2004
Approved Judgment
[1]All three members have contributed to this judgment of the court. In view of the importance of the issues, it will not be subject to the usual restraints on its use.[2]The application before the court is made by Robin Allen QC, on behalf of former inhabitants of the Chagos Islands and their descendants, for permission to appeal against the decision of Ouseley J to strike out the entirety of their claim against - in effect - Her Majesty's Government for damages and declaratory relief designed to compensate for and if possible to reverse the effects of their enforced removal or exclusion from their homeland some three decades ago.

The background

[3]The Chagos Islands are an archipelago in the Indian Ocean which includes the island of Diego Garcia. During the 1960s the United States administration decided that it required Diego Garcia as a strategic military base. The government of the United Kingdom set about accommodating this request, but at an early stage realised that it and the neighbouring islands had a substantial population, mostly Seychellois contract workers, but some (known as the Ilois) springing from former slaves who had remained there after emancipation or from migrant labourers who had settled there. It decided that both Diego Garcia and the neighbouring islands needed to be cleared of their population.[4]To accomplish these ends the islands were separated in 1965 from the British colony of Mauritius and (together with some other islands detached from the Seychelles) made a separate colony, the British Indian Ocean Territory (BIOT). Mauritius itself in 1968 became an independent state. Its constitution gave Mauritian citizenship to everyone born in what had previously been the colony of Mauritius. This of course include the Chagos islanders, who were thereby entitled to settle in Mauritius.[5]In 1967 the United Kingdom bought out the freehold interest of the company which now farmed copra on the islands and which employed virtually its entire population. It was the claimants’ case that those of them who went to Mauritius or the Seychelles for medical treatment and other things that could not be had on the islands were prevented from returning, and that the remainder were deported by ship. The defendants attributed the depopulation to the closure of the plantations on the islands. What is clear is that between 1967 and 1973 the entire population was removed to Mauritius and the Seychelles, where they had neither homes nor work.[6]The political history of the removals and of the endeavours to secure redress can be found in compelling detail, first in the judgment of Laws LJ in Bancoult (below) and secondly in the judgment of Ouseley J in the present proceedings. In the light of it, it would be wrong of us to move on to the legal issues without acknowledging, as Ouseley J went out of his way to do in a judgment to the comprehensiveness of which we pay tribute, the shameful treatment to which the islanders were apparently subjected. The deliberate misrepresentation of the Ilois' history and status, designed to deflect any investigation by the United Nations; the use of legal powers designed for the governance of the islands for the illicit purpose of depopulating them; the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement: all of this and more is now part of the historical record. It is difficult to ignore the parallel with the Highland clearances of the second quarter of the nineteenth century. Defence may have replaced agricultural improvement as the reason, but the pauperisation and expulsion of the weak in the interests of the powerful still gives little to be proud of.[7]In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 Laws LJ and Gibbs J held that Immigration Ordinance 1971 by which the enforced removal of the population was purportedly authorised was beyond the powers of governance conferred by the colony’s constitutive instrument, the British Indian Ocean Territory Order 1965, and so unlawful. The decision was not appealed. Although John Howell QC for the defendants has indicated that, if permission to appeal is granted, he will contend that Bancoult was wrongly decided, we unhesitatingly approach the present application on the footing that (at least in this respect) it was rightly decided. It follows for present purposes that there is no defence of statutory authority to any tort which can be established.[8]It cannot be supposed that the United Kingdom, having bought the Chagos freeholds, was as much at liberty as any other landowner to evict the occupants for any or no reason. Unlike the landowners and tenant farmers who cleared the Highlands of their labouring population, the state is not at liberty to act arbitrarily or unjustly: it is the task of the courts, which are part of the state, to see that it does not. It cannot lie in the mouth of the United Kingdom government, having enacted powers for the governance of the islands, to contend that its officials can ignore the limits on those powers and act outwith them.[9]The many hundreds who were initially displaced have grown to a still impoverished population of several thousand. A compensation payment of £650,000 from the British government, with accrued interest, was distributed in 1977-8 to a total of 595 displaced families then in Mauritius. It did little if anything to relieve their massive problems of rudimentary housing, unemployment and social isolation. Nor did the partial reversal of the Immigration Ordinance in relation to two of the islands following the divisional court’s judgment afford any concrete help, since there are now effectively no means of subsistence there. But over the intervening years attempts have been made to secure fuller compensation and redress from the British state which displaced them.

Renunciation

[10]In 1975 proceedings were issued in London by Michael Vencatessen, one of the last deportees from Diego Garcia, claiming damages for intimidation, deprivation of liberty and assault arising out of his enforced removal. The action was settled in 1982 for a payment by the defendants (in effect Her Majesty’s Government) of £4,000,000 plus costs, designed to settle all the claims of all the islanders. 1,344 quittance forms were signed (that is, for the most part, thumbprinted) upon receipt of a share of this sum. It is accepted by Mr Allen that the claims to which this settlement related are in substance the same as the present claims. What he does not accept is that any of the forms of renunciation should bar the present action.[11]Mr Howell has made it clear that it will not be sought to debar any claimant who, despite having taken reasonable steps, did not understand what he or she was signing. But none of the cases so far examined by Ouseley J has fallen into this class.[12]The form of renunciation, executed by the great majority of the claimants during 1982 and 1983, contained a clear statement by the signatory to the effect: “In consideration of the compensation paid to me by the Ilois Trust Fund and of my settlement in Mauritius … I renounce to all claims, present or future, that I may have against the government of the United Kingdom, the Crown in the right of the United Kingdom, the Crown in right of any British possession, their servants, agents or contractors ….” in respect of actions which, it is realistically accepted on behalf of the applicants, form the basis of the current claims. The Trust Fund was established by a Mauritian statute, and was endowed principally by the United Kingdom government. In Permal -v- Ilois Trust Fund [1984] MR 65 at 70, the Supreme Court of Mauritius held that an individual Ilois had “a cause of action under the [Ilois Trust Fund] Act [1982] in Mauritius [against the Trust Fund] so as to avail himself of the remedy there provided as a statutory alternative to any other course of action in the United Kingdom … against the United Kingdom authorities that he might also possess”.[13]The contention that those claimants who signed the renunciation forms are nonetheless entitled to maintain their present claims is based on the following propositions: i) It is an abuse for the defendants to raise the issue in these proceedings, given that they failed to raise it in Bancoult; ii) It is and was not open to the defendants to contend that the Ilois could compromise or renounce “their fundamental and constitutional rights”. We do not consider that either of these propositions is tenable.[14]In Bancoult, the issue was whether or not s4 of the Immigration Ordinance was ultra vires the BIOT constitution. The divisional court held that it was. We are very doubtful whether the fact that Mr Bancoult had signed a renunciation form would have been held by the divisional court to disqualify him from pursuing his successful challenge to s.4 of the 1971 Ordinance. We do not consider that the renunciation forms could sensibly be construed as applying to the creation of ordinances.[15]Even if that is putting it too high, we agree with what

the judge said in paragraph 594 of his judgment:

“There is a significant difference between saying that a claim for compensation, made after a final settlement has been reached, is an abuse, and saying that an application for Judicial Review to determine the validity of legislation in force is an abuse of process.”
[16]Accordingly, even if, which we doubt, a claimant who had signed a renunciation form would have been debarred from seeking the relief sought and obtained in Bancoult, we consider that it is perfectly understandable that the point was not taken against Mr Bancoult in those proceedings. It would have been a departure from the high standard of fairness with which government ordinarily conducts litigation before our courts had it been contended that Mr Bancoult’s public law proceedings should be struck out on the unattractive and limited ground that he had signed a renunciation form in a related private law claim. It is one thing for the government to rely on the renunciation form, and the financial benefits which it conferred on the signatory, as a reason for striking out a subsequent claim by the signatory for compensation; it is quite another for it to seek to shelter behind the renunciation form in order to avoid a finding that its secondary legislation was unlawful. In any event, as Mr Howell says, to have taken the point against Mr Boucault would have been “a pointless diversion”, because the Ilois would have found a substitute applicant who had not signed a renunciation form.[17]As to the second ground advanced for not giving the renunciation forms their natural effect, we were not referred to any recognisable principle of law, any discussion in any textbook, or any authority, whether in this or any other jurisdiction, to support the proposition that it is not open to a person who has had his fundamental rights infringed by the state validly to compromise any claim which he may thereby have for damages or other relief in private law. Clearly, if the state put unreasonable or improper pressure on the claimant in order to persuade him to settle his claim, that would be a different matter, but in such a case the claimant would be able to impeach the settlement on the ground that it had been induced by such pressure.[18]It is right to mention that, in the Notice of Appeal, albeit not developed in their skeleton argument, the claimants contended that “the renunciation forms did not meet the test for abuse of process set out in Johnson -v- Gore-Wood & Co [2002] 2 AC 1”. Given that the point was raised in their Notice of Appeal, it is right to mention it, but, given that it has not been developed in their skeleton argument, or indeed orally, we merely record our agreement with the judge’s reasoning on this issue at paragraphs 482-484 of his judgment.[19]In our judgment Ouseley J was therefore right to hold that those who signed quittance forms on receipt of compensation payments, inadequate though the payments may have turned out to be, bindingly compromised the claims which they now seek to pursue. What follows is therefore strictly material only to those Chagossians who signed no disclaimer or who did not appreciate what they were signing. But it is relevant to all the claims should we be wrong about the signed renunciations.

The causes of action

[20]The three principal causes of action which Mr Allen seeks to resurrect, each of them having been held unsustainable by the judge, are misfeasance in public office, unlawful exile and deceit. Each of these is a private law claim against the British state. In a civil law system, the judgment in Bancoult would be enough to entitle the claimants, other things being equal, to an award of damages against the state: see the historic decision of the French Conseil d’État in Blanco (TC 8 Feb. 1873), and see generally D. Fairgrieve, State Liability in Tort: a comparative study (2003). The unlawful exclusion and removal of the islanders would be regarded in such a system as faute lourde and would be compensable in damages. But the English common law has no knowledge of the state. Public law recognises the Crown as the repository of a range of prerogative and statutory powers. By the prerogative writs and orders, it has for centuries called ministers to account if they abuse the latter, and in recent years if they misuse the former. But the State has no tortious liability at common law for wrongs done by its servants, from ministers down. In England at least (Scottish law has historically differed) either the Crown's servants are personally liable or there is no redress. It was to change this anomalous situation that the Crown Proceedings Act 1947 was passed. But the 1947 Act does not work by making the state a potential tortfeasor: it works by making the Crown vicariously liable for the torts of its servants. It has only been with the enactment of the Human Rights Act 1998 that the Crown, in the form of a ‘public authority’, has acquired a primary liability for violating certain rights. Where, of course, a limb of the state has corporate legal personality – a local authority, for example, or the Bank of England – no such problem arises; but this is not such a case.[21]Mr Allen's submissions have not faced squarely up to this problem. He has sought in relation to each of his three main causes of action to implicate the state directly, and has fallen back on vicarious liability for individual wrongdoing only as a second resort.

Exile

[22]The fallacy of his approach is seen most plainly in the contention that to exile people from the Queen's dominions without lawful authority is - because it must be - a tort. Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already established by the judgment in Bancoult. But to make it a state tort requires a legal system in which the Crown, in private law, can do wrong; and this, apart from the Human Rights Act, we do not have.[23]It may well be, however, that removing or excluding people from an entire territory against their will, at least in the legal situation set out earlier in this judgment, is a trespass to the person committed by whoever threatens them with force if they do not comply. At least one of the individual accounts, that of Marie Therèse Mein, set out by way of example in the particulars of claim, tells a harrowing story of enforced removal from Diego Garcia, although when called as a witness Mrs Mein was able to recall very little.[24]On the evidence which he heard, however, Ouseley J found no such trespass. This is not to say that there were no such cases, though they cannot include those of the second generation of exiles. Mr Allen offered to particularise any such cases by way of amendment if we were to hold that actions lay in trespass to the person. This is not an acceptable way of proceeding. Ouseley J in paragraph 331 drew specific attention to the want of any pleaded case in trespass:
“There is no allegation that there was any trespass to the person to anyone nor that anyone on behalf of the defendants authorised or carried out any such act.”
Even at this stage we have no proffered case histories from which to derive the facts which would controvert Ouseley J’s conclusion on the written and oral evidence before him:
“There is not the slightest evidence of the threat or the actual use of force or intimidation to bring about the removal of the Ilois, or that there was any for which either defendant was responsible.”
[25]We cannot believe that the possibility of pleading trespass to the person was not considered at an early stage of these proceedings. It seems to us probable that it was rejected because it would divide the claimants almost arbitrarily into those who had been forcibly removed or prevented from returning and those who had not. Beyond this, however, it would be necessary to show not only the threat of force to effect the removals and exclusions, but also to show that the threat came from persons for whom the Crown was liable as if it were a private person and they were its servants or agents. Beyond the point to which Ouseley J’s findings go, the evidence still does not offer to fill the space.

Misfeasance in public office

[26]Mr Allen's principal contention, here too, has been that the state can be institutionally liable. But the same fundamental problem arises: the state is not a potential tortfeasor. The nature of misfeasance in public office is tailored to this fact: it is concerned with individuals who consciously abuse powers entrusted to them by the state and do so knowing that it may well harm someone: see Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1, per Lord Steyn at page 191.[27]Mr Allen founds upon what Lord Hutton said at paragraph 126 of his speech on the application to strike out the claims against the Bank of England:
“It is clear from the authorities that a plaintiff can allege misfeasance in public office against a body such as a local authority or a government ministry: see Dunlop v Woollahra Municipal Council [1982] AC 158 and Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716.”
But Dunlop self-evidently concerned a local corporation. The claim against the nominated department of state in Bourgoin depended on proof that “the minister’s motive was to further the interests of English turkey producers by keeping out the produce of French turkey producers – an act which must necessarily injure them” (per Oliver LJ at 777). In other words, if the necessary knowledge and motive could be brought home to the minister, the Crown in the nominal form of MAFF (pursuant to the list of authorised departments published under s.17 of the Crown Proceedings Act 1947) would be vicariously liable. It is in that sense that Lord Hutton was speaking of departmental liability for misfeasance in public office. .[28]Faced with this inescapable difficulty, Mr Allen submits that he is able to implicate officers of state in the tort so as to make the Crown vicariously liable. He points to the documentary evidence that the Foreign Secretary and Prime Minister of the day were both privy and party to the scheme - he would say the scheming - by which the islands were to be depopulated. What he cannot point to, however, is evidence that they or any of their subordinates (who constitutionally are their alter ego) knew that it was illegal. Such case-law as there was (for example Ibrelebbe v The Queen [1964] AC 900, 923) confirmed that the power to make ordinances for the government of dependencies went extremely wide. It was not until the divisional court decided Bancoult that a line was drawn.[29]For all these reasons there is no viable claim here for misfeasance in public office.

Deceit

[30]The claimants raised two arguments in relation to deceit, based on: i) allegedly deceitful representations made to the claimants; ii) allegedly deceitful representations made to third parties.[31]So far as the representations made to the claimants are concerned, the judge accepted, in paragraphs 367 and 368 of his judgment, that it was arguable that it had been represented to the claimants that they had no right to remain on any of the Chagos Islands. In their application for permission to appeal, the claimants contend that this representation was false, because “as a permanent population of a non-self-government territory, the islanders had a right to be consulted and to make choices for themselves”, which is a slightly different formulation from that adopted by the judge.[32]Despite this difference in formulation, we consider that the judge was right in holding that this aspect of the claim was unarguable, and that there is no real prospect of an appellate court holding otherwise. Apart from anything else, the judge’s finding in paragraph 369 that there was “no evidence that anyone who might have made any such representations … knew of or was reckless as to the falsity of [the relevant] statement” is fatal to any such case on deceit. Further, the fact that at least some of the claimants could be described as “a permanent population” does not mean, as a matter of domestic law, that they had a right to be consulted about their removal. This aspect of the claim, as put to the judge, involved reliance on article 73 of the UN Charter, which he held could not assist the claimants, because the article “confers no individual rights” and could be disregarded by the UK “so far as any domestic law obligations go” (paragraph 369). We do not understand that conclusion to be challenged, and, if it is, we would be bound to reject the challenge. In any event, in reality, this aspect of the deceit claim is a reformulation of the claim based on misfeasance in public office; if the misfeasance claim cannot succeed, then this aspect of the deceit claim could not succeed either.[33]We turn to the second way in which the claim in deceit is made, namely that the defendants had made false representations to the UN, the UK Parliament, the British press and the government of Mauritius, to the effect that none of the Ilois were permanent residents, or had the right to be on the islands, or were British citizens, or had any rights under article 73 of the UN Charter. To quote from the claimants’ skeleton argument before us, it is said that such representations “were known by the defendants to be false and … were made by the defendants with the intention that [the relevant] bodies should desist from intervening in the situation and otherwise giving help to the Chagossians, so that the Chagossians would suffer harm”.[34]In paragraph 364 of his judgment, the judge accepted “that it is arguable that false statements were knowingly made to third parties about the status of the Ilois as residents of Chagos, but with the intent that these third parties should act on them, rather than communicate them to the Ilois, who would have known that the statements were untrue. They may have been intended [to] persuade those third parties to do nothing to investigate or assist the Ilois or to reduce opposition to the defendants’ defence policies.”[35]But the basis upon which the judge rejected this head of claim was that the law did not recognise a cause of action by a claimant who sought to recover damages as a result of loss suffered from a deceitful statement made by the defendant to a third party, in circumstances where the third party was not the agent of the claimant and did not communicate the statement to the defendant.[36]There is no authority which suggests that the tort of deceit has been, or can be, extended to apply to the case which, on the arguable facts found to be established, the claimants seek to bring. The judge may very well be right in his conclusion that, as a matter of law, no such cause of action exists as a matter of principle. But it is conceivable that in certain exceptional circumstances, for instance where the defendant, by the very making of the deceitful statement or for some other reason, had assumed liability to the claimant, a cause of action could exist.[37]Had there been no other conclusive answer to the claim in the present proceedings, we would have been prepared to give permission to appeal on this issue, if only because the possibility of such an enlargement of the kinds of situation giving rise to a cause of action in deceit was a question of principle which deserved the attention of the court.

The Mauritius Constitution

[38]The case argued before Ouseley J under the Mauritius Constitution, and rejected by him as unarguable, was of great range and complexity. The single ground of appeal now pursued is that, contrary to what the judge held, the Mauritius Constitution applied to the British Indian Ocean Territory – that is to the Chagos Islands – and was justiciably violated by the enforced removals.[39]Mauritius was given a constitution by the United Kingdom in 1964, four years before it became independent, in the graceless but customary form of a schedule annexed to an Order in Council. (It was, however, drafted by the doyen of English public lawyers, Professor de Smith.) It set out a right to the protection of the home (s.1) and to protection from inhuman treatment (s.5). It applied, naturally, only to Mauritius, but in 1964 Mauritius included much of what in the following year became the British Indian Ocean Territory. The BIOT Order by s.18 altered the Mauritius Constitution by excising from Mauritius those islands which by the same instrument became part of the BIOT. It also, as was usual, contained a provision in s.15 continuing in force in the BIOT the laws that were in force immediately before the making of the Order.[40]The claimants submit that s.15 thereby continued in force in the new territory the material provisions of the Mauritius Constitution. The defendants submit that the whole purpose of the Order was to sever the Territory from Mauritius and therefore to exclude the latter’s constitution from its laws. The judge at paragraphs 416-7 pointed out that BIOT was also to include islands which until then had been part of the Seychelles, and concluded:
“It would be very odd if by the sidewind of the general incorporation of existing laws from the two colonies from which the islands had been detached, BIOT had incorporated a part of the Constitution of the colony from which it was being detached, and had provided for fundamental rights to be enjoyed only by those who were in the former Mauritius part.”
He considered it “incontestable” that the Mauritius Constitution had not been incorporated.[41]We are not so sure. Holt CJ three centuries ago remarked that while an Act of Parliament could do no wrong, it could do some pretty strange things; and Orders in Council are no different. Knowing what we do of the ulterior purpose of the BIOT Order, we can accept that Whitehall would not have wanted to grant the people of the BIOT any of the fundamental rights conferred by the Mauritius Constitution. But the court’s task is to give meaning and effect to the words on the page, not to the agenda of those who wrote them. And it is not in fact strange that a newly created territory should be given as its patrimony the body of laws previously in force there. There is in reality no other way of providing continuity of governance, and the process was used in grants of independence throughout the former Empire.[42]Standing by itself, therefore, we consider this point to be arguable.

Limitation

[43]On the face of it, given that the present proceedings were only begun in 2002, while the matters complained of took place in the 1960s and 1970s, there is an unanswerable defence based on limitation. The judge held that, if any of the claims had been otherwise valid (and in two respects we have held that they might have been), they would have been defeated by a limitation defence.[44]However, the claimants raise three arguments to defeat the defendants’ limitation case, namely: i) unconscionability; ii) disability; and iii) concealment. It is relevant that, this not being an action in respect of defamation or malicious falsehood (cf s.32A), and the judge’s rejection of any possibility of enlargement of time in relation to personal injury (cf. s.33) being now unchallenged, the court has no residual discretionary power to enlarge time.[45]The claimants’ first argument is that it would be unconscionable for the defendants to be allowed to rely on limitation. We consider that the judge was very probably right in rejecting this argument as a matter of principle, on the grounds that the Limitation Act 1980 is intended to provide a complete code, including the circumstances in which it is unconscionable for a defendant to seek to invoke limitation, and that it is simply not open to the courts to seek to circumvent the effect of the 1980 Act by adding fresh grounds.[46]However, it is plainly possible for a defendant validly to contract not to take a limitation point, or to estop himself from taking a limitation point. Particularly bearing in mind the basis of estoppel, it is, we think, conceivable that a court may be prepared to hold that, by his conduct, a defendant had rendered it so inequitable for him to take limitation point that the court will effectively not permit him to do so. In the present case, the claimants would seek to argue that, by the very actions complained of in these proceedings, namely removing them to Mauritius, and leaving them in a position where they were poor, ignorant, and without recourse to the courts, the UK government and its representatives cannot now be heard to say that the claimants have lost their right to seek relief promptly where the delay is due to these very circumstances.[47]We also consider that the claimants’ second argument, while unlikely to succeed, could conceivably do so. Thus it seems to us that there is a case for contending that, owing to the circumstances just described, the claimants were “under a disability”, so that time was prevented from running by virtue of s. 28(1) of the 1980 Act. It is true that in s38(2) of the same Act it is provided that “a person shall be treated as under a disability whilst he is an infant, or of unsound mind”, but we think that there is just scope for arguing that this is not an exhaustive definition of disability. We do not think that the contrary is established beyond doubt by Yeats -v- Thakeham Tiles Limited [1995] PIQR 135 (relied on by the judge at paragraph 614 of his judgment) or by Thomas -v- Plaistow (unreported 23rd April 1997) as suggested by the defendants. Subject to other considerations, the point is not one which in principle the claimant should be shut out from taking on appeal.[48]However, even assuming, what for present purposes we are prepared accept is arguable, that the claimants would have a sufficient case based on unconscionability and/or disability to contend that time did not start running when they were first removed from the Chagos Islands, it seems to us that these two arguments face insuperable difficulties after 1983 at the very latest. We have mentioned earlier in this judgment that in 1975 one of the islanders, Mr Michael Vencatessan, brought proceedings in this country by which he claimed damages for his removal from Diego Garcia and the subsequent events. This action proceeded to discovery, which the judge described in paragraph 56 as “particularly complex”, and resulted in an open offer from the United Kingdom government in 1978 to settle all the claims of the Ilois for £500,000 plus the costs of the claim brought by Mr Vencatessan. The Treasury Solicitor agreed to pay for the claimant’s solicitor to go to Mauritius and advise all the Ilois, which he did in October 1979. By then, he had the benefit of an increased offer from the UK government, and the advice of Louis Blom-Cooper QC. He held meetings with many of the Ilois, who had appointed a committee to negotiate on their behalf. The detailed history of the negotiations thereafter is set out in paragraphs 62-80 of the judgment. A group of Ilois who had not been anxious to accept the original offer set up a committee, known as CIOF, who instructed a new firm of solicitors. They in turn sought the advice of John Macdonald QC. As a result of further discussions, the UK government substantially increased its offer, which finally resulted in the Trust Fund, set up for the benefit of the Ilois, to which reference has already been made.[49]In light of this history, it appears to us that any argument which might otherwise have a chance of stifling the defendants’ limitation defence on grounds of unconscionability or of rebutting it on grounds of disability would be doomed to failure. The unconscionability argument could only prevent time starting to run so long as the effect of the events giving rise to the unconscionability continued to operate. Equally, it is clear from s28(1) that any disability merely suspends the limitation period until the disability ceases. It appears to us that, given the events of 1975-1983, from the initiation of Mr Vencatessan’s action to the setting up of the Trust Fund, there is no prospect at all of showing that the unconscionability or disability, assuming that either or both can be established, survived beyond 1983. Given that the present proceedings were issued in 2002, we are therefore of the view that there is no prospect of the Court of Appeal disagreeing with the judge’s conclusion on limitation, unless the claimants can succeed on their case of deliberate concealment, to which we now turn.[50]The proper effect of s32(1) and (2), which prevent time running under the 1980 Act during such period as the defendant has “deliberately concealed” relevant facts from the claimant, has been considered in a number of cases, perhaps most importantly Cave -v- Robinson Jarvis & Rolf [2002] 2 WLR 1107.[51]The judge’s analysis and conclusions in relation to the claimants’ case on deliberate concealment are set out in paragraphs 621-686 of his judgment. It is full and careful. We agree with the judge that, in light of the disclaimer on behalf of the claimants that there was “any allegation that there was any impropriety by anyone in the conduct of the Vencatessan litigation during the process of discovery”, it is impossible for the claimants to succeed in any contention that there was deliberate concealment by non-disclosure of documents in the Vencatessan proceedings.[52]The judge’s statement in paragraph 646 of his judgment that “deliberate concealment otherwise plainly entails a positive act”, although the claimants take issue with it, appears to us to be unexceptionable, particularly in light of what was said in paragraph 14(iii) of the judgment of this court in Williams -v- Fanshaw Porter [2004] EWCA Civ 157. Further, we do not consider that the judge can be criticised, as the claimants suggest he can be, for having concluded at paragraph 652 of his judgment that the claimants had to prove that they could not, with reasonable diligence, have discovered the concealed facts earlier. That requirement was clearly established in this court in Paragon Finance Limited -v- D B Thakerar & Co [1999] 1 All ER 400 at 416F-418F, and endorsed in Biggs -v- Sotniks [2002] EWCA Civ 272 at paragraph 50.[53]In these circumstances, we consider that, even if the judge was wrong in holding that the claimants could not establish a valid cause of action against the defendants, any such claim would inevitably be defeated on grounds of limitation.

Conclusion

[54]This judgment brings to an end the quest of the displaced inhabitants of the Chagos Islands and their descendants for legal redress against the state directly responsible for expelling them from their homeland. They have not gone without compensation, but what they have received has done little to repair the wrecking of their families and communities, to restore their self-respect or to make amends for the underhand official conduct now publicly revealed by the documentary record. Their claim in this action has been not only for damages but for declarations securing their right to return. The causes of action, however, are geared to the recovery of damages, and no separate claims to declaratory relief have been developed before us. It may not be too late to make return possible, but such an outcome is a function of economic resources and political will, not of adjudication.[55]In dismissing this application for permission to appeal, we record our acknowledgement of the prodigious amount of work put into the case by the lawyers for both sides and by the judge.

Cited in 13 later judgments

and 4 more of the most senior